APPOINTMENT OF JUSTICES

By Jorge D. Lomboy
September 14, 2016



Loyalty is faithfulness or allegiance to a person, cause, duty or government.  It is a form of idolatry.  Loyalty is not asked.  It is not for free, it is not taught and it is not learned in school.  It can be earned and can also be bought or sold.  Loyalty is bought or sold when money changes hands in the streets and behind closed doors, more commonly known as corruption.  We earn the loyalty of others for the help we have given them, the favors we have bestowed and the benefits they have received from us.  In local parlance this is what we call a debt of gratitude.

Members of Congress are elected, not appointed.  They owe their jobs not to the President and not to the Supreme Court but to the people at large.  The President is elected, not appointed.  He owes his job not to Congress and not to the Supreme Court but to the people in general. Members of the Supreme Court are not elected but appointed.  They owe their jobs not to the people and not to Congress but to the President. Politicians are elected officials with a debt of gratitude to the people.  Justices are appointed officials with a debt of gratitude to the President.

Loyalty does not listen to reason.  It has compromised truth, it has deserted integrity, it has alienated objectivity and it has submerged independence.  The Philippine Supreme Court is a court of last resort.  Article VIII, Section 7(3) of the 1987 Constitution requires that a member of the Judiciary must be a person of proven integrity and independence.  It provides that members of the Supreme Court shall be appointed by the President.  Appointment is a big word and a big help.  It is a big favor and a big benefit to earn loyalty through a debt of gratitude.  Supreme Court justices are no angels.  They are not saints, they are humans like us with conflicting loyalties guiding them in their deliberations.  Anyone with a debt of gratitude can hardly be objective with an open mind since there is a moral compulsion to return the favor to the appointing power to whom they are deeply beholden.  One way to foresee how a justice thinks is to know who appointed him and most likely we will see two dignitaries scratching each other’s backs.

Article VIII, Section 11 of the 1987 Constitution provides that members of the Supreme Court shall hold office during good behavior until they reach the age of 70 or become incapacitated.  Tenure of office does not guarantee independence of mind, it does not guarantee independence of the Judiciary.  In cases where the President’s official actions and decisions are an issue, something in the heart that is basically subjective contradicts the mind that is basically rational or objective.  Independence of mind is marred by the urgings of the heart not to bite the hand that feeds a justice.  Tenure of office does not guarantee objectivity, does not guarantee open mind and does not guarantee freedom from bias and prejudice.  Tenure of office does not suspend loyalty and does not override the influence of loyalty as a frame of reference in the Supreme Court. Tenure of office does not make justices oblivious to the appointing power, does not free them from moral compulsion and does not make them look the other way.

For as long as justices are imbued with loyalty spurred by appointment, there is no such thing as objectivity, no such thing as open mind and no such thing as independence of mind, tenure of office notwithstanding.  Loyalty is irresistible.  It is unfathomable, it is irrational, it is the betrayer of truth and the dispenser of partiality.  It is human nature to serve, defend and protect the interests of people who raised us.  It is natural law to stand on the side of our promoters and producers when they are in jeopardy.  Human nature and natural law are the forces that never give way to any law, not even the Constitution.  Loyalty is blind to the weight of evidence and is blind to justice.  It is by appointment that the President earns the loyalty of those he had appointed to the Supreme Court.

Because of a debt of gratitude, there is a growing tendency to politicize the Judiciary borne out of executive appointments by a politically-minded president.  Politicizing justice vitiates the requirement of integrity in Article VIII, Section 7(3) of the 1987 Constitution.  Politicizing the functions of a justice taints the good behavior requirement in Article VIII, Section 11 of the 1987 Constitution.  It is dubiously incongruous that members of the Supreme Court, which is a separate branch of government, are not treated with equal dignity.  They owe their appointment to the Chief Executive, a politician, and are subject to removal by senators, a bunch of politicians, despite separation of power.  The President has the exclusive power to fill vacancies among judges and justices but the Supreme Court as an independent body has no power to fill any vacancy within its ranks as well as in the Executive and Legislative branches.  Something is wrong with separation of powers when the Supreme Court has no power to appoint judges in the lower courts while the President has exclusive power to make appointments in the Executive branch.

Independence of the Judiciary is still a goal and not a standard.  No law and no constitution could ensure independence of the Judiciary for as long as debt of gratitude weighs heavily among the men in the bench.  The feeling that the justices are beholden to the appointing power detracts from objectivity and open mind.  Being beholden calls to action the best prosecutor in court which is the court of conscience.  There is hardly anyone alive who is stripped of loyalty for only the dead have no loyalty.  And because debt of gratitude and loyalty are imbedded in every human, independence of mind and objectivity are far-fetched.  Debt of gratitude and loyalty deter independence and objectivity.  A closed mind impairs administration of justice.

If I had to make a choice between the lesser of two evils, I believe that there is more prestige in the Judiciary which is apolitical than in the Legislative and Executive branches which are political.  I believe there is more integrity in the office of a Supreme Court justice than in the office of a lawmaker or executive technocrat.  I believe there is more probity in being a member of the Supreme Court than in being a member of Congress or a member of the Cabinet.  I believe there is more honesty among the justices than among lawmakers and executive officials.  I believe there is more independence among justices than with politicians in government.  I believe members of the Supreme Court are more high-minded for being protectors of the Constitution than all other government officials who are addicted to power and greed.  Unfortunately even as the Judiciary is the lesser of three evils, their independence is encumbered to the appointing power representing the greater evil.

One step toward galvanizing the independence of the Judiciary is to strip or divest the President of his constitutional power to appoint members of the Supreme Court.  This requires a constitutional amendment to repeal Article VIII, Section 9 of the 1987 Constitution by referendum.  It will help to ensure the independence of the Judiciary if members of the Supreme Court are not beholden to anyone.  It will help to foster independence if vacancies in the Judiciary are filled by retired justices chosen by the current justices in banc.  It will help to ensure independence if retired justices act in anonymity in their balloting by dropping white or black balls in a box in filling up vacancies in the court. Justices appointed through this process are not beholden to anyone.  The independence of the Judiciary is impacted by the manner of appointment of justices.